Border Control

04.24.12

Supreme Court Takes Up Controversial Arizona Immigration Law

Two years ago, Arizona created one of the most draconian immigration laws ever. Now the Supreme Court will decide whether police should have the power to investigate immigration status. But don’t expect justices to address any lofty issues.

Now that the Supreme Court has dealt with health-care reform, the next major topic on the docket could have broad implications for immigration reform and how far state governments can go to deal with the issue of undocumented border crossings. It also could have a profound effect on the election in November.

The Arizona statute at the heart of this case—the controversial SB 1070—conscripts local law-enforcement officers into policing illegal immigration within the state’s borders. It has become known as the “papers please” law because it requires that police question anyone they think might be in the country illegally while enforcing other laws, and then detain them if they don’t have documentation. SB 1070 has been heralded as an important tool for law enforcement to deter illegal border crossings and cut crime rates. Critics have assailed it as state-sanctioned racial profiling and a blow to civil liberties. But don’t expect the court, which will hear oral arguments on Wednesday, to take up such lofty questions with this particular case.

“The issue the court is looking at is very narrow and technical,” says Jayesh Rathod, director of the Immigrant Justice Clinic at American University’s Washington College of Law. “They may not make a broad pronouncement about civil rights or federal power. Be prepared to be disappointed.”

Arizona Gov. Jan Brewer signed SB 1070 into law two years ago, and the Justice Department filed suit almost immediately to stop key provisions from going into effect—setting up a constitutional showdown between states’ rights and federal supremacy. The DOJ’s main argument was that states don’t have the right to preempt the federal government’s role in immigration law enforcement. Arizona contends that it is simply complementing federal law.

There are four elements of SB 1070 that will be scrutinized. First, can a state require police to confirm a person’s immigration status if there is “reasonable suspicion” he or she is in the country illegally? Second, is it constitutional for a state to make it a crime if a person isn’t carrying proof of citizenship? Third, should police be able to arrest immigrants without a warrant if there is probable cause they committed a crime that would allow authorities to deport them? Finally, can Arizona make it illegal for undocumented immigrants to apply for a job or work?

If the court upholds the provisions, it will pave the way for state legislatures to take their own ad hoc approach to dealing with undocumented immigrants.

There are but a few prior cases that give clues as to how the Supreme Court might rule. Under Chief Justice John Roberts, the court has taken up several cases that deal with federal preemption. State governments have found themselves on the losing end more often than not, according to legal experts, but many of those cases have dealt with state laws affecting commerce—not police powers. The court has allowed states to impose fines on businesses that employ undocumented workers.

If the court upholds the provisions—or even just one or two of them—it will pave the way for state legislatures to take their own ad hoc approach to dealing with undocumented immigrants. Several states, including Alabama, Georgia, South Carolina, and Indiana, have created laws loosely based on SB 1070 in the hope that undocumented workers will self-deport—or elect to return home because life has become unlivable in the United States. (The idea of self-deportation reached hot-button status this year after Republican presidential candidate Mitt Romney, who has expressed support for SB 1070, said it was his preferred method for dealing with the immigration issue.) “It’s not clear whether the court will address this with a sweeping decision,” says Marielena Hincapie, executive director of the National Immigration Law Center, an advocacy group based in Los Angeles, Calif. “It could really go either way.”

Aside from health-care reform, no other issue the Supreme Court takes up this year could have such a profound effect on the election. Laws such as SB 1070 disproportionately affect the Latino community, which also happens to be the fastest-growing voting bloc in the country. These voters overwhelmingly support comprehensive reform that includes a path to citizenship for undocumented immigrants. They will be watching this decision—and how the candidates react to it—closely.